Appeal No. EAT/306/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 29th June 1995
	Judgment delivered on 11 October 1995

	Before

	THE HONOURABLE MR JUSTICE MUMMERY (PRESIDENT)

	MR J R CROSBY

	MRS E HART 

	

MRS W COLLINS	APPELLANT

MR Y O SAMPONG	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	Miss Cherie Booth QC
	The Solicitor
	London Borough of Hackney
	298 Mare Street
	LONDON E8 1HE

For the Respondent	Mr T Kibling
(of Counsel)
UNISON
1 Mabledon Place
LONDON WC1H 9HJ

MR JUSTICE MUMMERY (PRESIDENT):             This is an appeal against the decision of the Industrial Tribunal held at London (South) over six days in October and November 1992.  The Tribunal decided two cases.

		(1)  The majority decision in the first case (the discrimination case) was that Mrs Wendy Collins, the Respondent, did not discriminate against Mr Y.O.Sampong, the Applicant, on racial grounds contrary to Sections 4(2)(c) and 1(1)(a) of the Race Relations Act 1976.  Mr Sampong's complaint was therefore dismissed.  

		(2)  The unanimous decision in the second case (the victimisation case) was that Mrs Collins had discriminated against Mr Sampong by way of victimisation contrary to Sections 4(2)(c) and 2(1)(a) of the 1976 Act.   Mr Sampong's complaint of victimisation therefore succeeded.  At a subsequent Remedies Hearing on 12 May 1994 the Tribunal unanimously decided to order Mrs Collins to pay to Mr Sampong the sum of £1,000 in respect of injury to his feelings arising out of the victimisation established at the first hearing.

	Both sides appealed.  By Notice of Appeal served on 14 April 1993 Mrs Collins appealed against the decision against her on victimisation.  On 7 June 1993 Mr Sampong gave notice that he not only intended to resist the appeal of Mrs Collins; he also cross-appealed against the majority decision rejecting his complaint of discrimination on grounds of race.  The cross appeal was not pursued at the hearing.  

	On the hearing of the appeals Mrs Collins was represented by Miss Cherie Booth QC.  Mr Kibling represented Mr Sampong.

	The relevant findings of fact by the Tribunal may be summarised as follows.  

		(1)  Mr Sampong is of Ghanaian racial origins.  In 1970 he began his employment in the Valuer's Department in the London Borough of Hackney.  By 1991 he had become a Grade 4 Valuer.

		(2)  Mrs Collins is of white British racial origin.  On 4 March 1991 she was appointed to the post of Borough Valuer at Hackney and thereby became Mr Sampong's ultimate senior departmental line Manager.

		(3)  On her arrival at Hackney Mrs Collins was briefed by Mr Roy Michael, the Director of Planning and Environmental Services and her line Manager; and by Mr Peter Clark, Acting Assistant Borough Valuer (PO8 grade).  At various times both Mr Michael and Mr Clark had acted as Mr Sampong's actual direct line managers.  Both are of white British racial origins.  They warned Mrs Collins that there had been problems with Mr Sampong.  In 1990 he had been dismissed by Hackney Borough Council, but won his internal appeal to a limited extent, was reinstated in his employment in May 1990 and placed under Mr Clark.  In November 1990 Mr Sampong was assimilated in the Valuer's Department at Grade PO4.  On 24 September 1990 he appealed against his grading which he considered to be too low.  In November 1990 Mr Sampong was moved into a team headed by Mr Fashola (Grade PO5) who is of African racial origins.  Mr Sampong continued to carry out duties under Mr Clark's direct supervision.   Mr Fashola was never informed in writing that Mr Sampong had been placed under his supervision.  The result was considerable confusion and a lack of proper supervision and guidance to Mr Sampong during that period.  

		(4)  Soon after her arrival, Mrs Collins formed the view that Mr Sampong was incompetent.  She wanted to be rid of him and conveyed those views to Mr Michael.  She became impatient and intolerant of the slow personnel procedures at Hackney which hampered her attempts to get rid of Mr Sampong in the shortest possible time.  

		(5)  From about mid-March 1991 there were a series of meetings and correspondence between Mr Sampong, Mrs Collins and others.  Following the meetings Mrs Collins kept a close scrutiny on Mr Sampong's case load and became his de facto line manager.  

		(6)  In May 1991 Mrs Collins expressed concern about Mr Sampong's work in relation to a valuation at the Cardinal Pole School following a complaint from the head of the school after a visit by Mr Sampong, Mrs Collins, without even pausing to ask Mr Sampong for his comments, wrote to him on 19 July asking him to attend a disciplinary meeting on 26 July.  She informed him that she was reallocating the Cardinal Pole valuation to a Mr Gordon.  Had Mrs Collins asked Mr Sampong to comment on the letter of complaint from the Headmaster she would have discovered that Mr Yaboah, a Valuer colleague who accompanied Mr Sampong on the visit to the School, would have contradicted every criticism made of Mr Sampong in the Head's letter.

		(7)  Mrs Collins sought advice from Mr Boateng, Directorate Personnel Officer in Hackney's Directorate of Environmental and Consumer Affairs, on how to deal with Mr Sampong.  She was not happy with the advice he gave her.  She did not approach Mr Yeboah, Head of Personnel Services in Hackney, for further advice, though she could have done so.  Mrs Collins was reluctant to accept advice given by Mr Yeboah where that advice conflicted with her wish to get rid of Mr Sampong.

		(8)  On 11 July 1991 Mr Fashola was suspended and subsequently dismissed.  Mrs Collins was principally instrumental in setting the disciplinary procedures against him in motion.  

		(9)  On 23 July 1991 Mrs Collins allocated two projects to Mr Sampong - Abney Park Cemetery and 44 Waterden Road.  On 26 July 1991 Mrs Collins served on Mr Sampong a notice of complaint under the disciplinary procedure.  The matters alleged against him included his handling of the Cardinal Pole School valuation.  

		(10)  On 4 September 1991 it was decided, at a meeting between Mr Sampong, Mrs Collins, Mr Yeboah and the Chief Executive of Hackney, that the disciplinary notice would not be proceeded with and would be held in abeyance until after the hearing of Mr Sampong's assimilation appeal.  It was also agreed that Mr Yeboah would explore with Mr Sampong (then aged 62) the possibility of his taking early retirement.  Mrs Collins was distressed at the prospect of Mr Sampong returning to her department, but acquiesced in the agreement.  

		(11)  On 23 September 1991 Mrs Collins wrote to Mr Michael expressing concern about Mr Sampong and seeking his guidance.  Mr Michael advised her to continue to allocate work to Mr Sampong commensurate with his grading.  

		(12)  On 8 October 1991 Mrs Collins wrote to Mr Sampong expressing concern about his handling of the Abney Road Cemetery and 44 Waterden Road projects.  She described this as a warning letter.  

		(13)  On 2 December 1991 Mr Sampong's assimilation appeal was heard and dismissed.  Following the appeal Mr Clark brought to Mrs Collins' attention the serious allegations made against him by Mr Sampong in his assimilation appeal.  Mrs Collins then wrote to Mr Sampong referring to the "defamatory" allegations against Mr Clark in his grounds of appeal letter, asking him to state precisely the grounds for his allegations. 

		(14)  On 18 December 1991 Mrs Collins learned that Mr Sampong would be on holiday during the period 30 December 1991 to 13 January 1992.  This annoyed her because it meant she would have to change her holiday plans and prepare for the arbitration hearing on the 44 Waterden Road valuation due to be held in January 1992.  

		(15)  On 17 December 1991 Mr Sampong presented an Originating Application to the Industrial Tribunal complaining of discrimination on the grounds of race by Mrs Collins.  

		(16)  On 19 December 1991 Mrs Collins discussed with Mr Yeboah her concern about the matters agreed at the meeting with the Chief Executive on 4 September.  Mr Yeboah's understanding was that no disciplinary action would be initiated against Mr Sampong while he pursued the retirement discussions with him.  He informed her that Mr Sampong had indicated a willingness to retire.  It was only a matter of finalising the details on Mr Yeboah's return from leave on 20 January.  Mrs Collins indicated that she might not be able to wait that long before initiating notice of disciplinary proceedings.  He asked her what the need for the rush was.  In his view, there was no unreasonable delay in leaving the matter until his return from holidays on 20 January, as there was every indication that Mr Sampong would take early retirement.

		(17)  Mr Sampong was on holiday from 30 December to 13 January.  On 13 January Mrs Collins received the Originating Application complaining of racial discrimination.  

		(18)  On 14 January 1992 Mr Sampong failed to return to work.  He was sick and produced a sick note.  

		(19)  On receipt of the Originating Application Mrs Collins spoke to Mr Beavis, Branch Secretary of NALGO and an employee at Hackney, saying that she was very upset at being accused of racial discrimination.  She later faxed the IT1 to him for comments, but he did not respond as Mrs Collins was not a NALGO member.  Mrs Collins said in evidence that she was generally upset at being charged with discrimination.  She said it was humiliating and degrading.  

		(20)  On 28 January 1992 Mrs Collins issued her second notice of complaint against Mr Sampong.  That led to the presentation of Mr Sampong's second Originating Application on 18 February 1992 complaining of victimisation.  

		(21)  Shortly after the issue of the second notice of complaint on 28 January 1992 Mr Sampong took early retirement and left Hackney's employment.  The notice of complaint against him therefore did not get off the ground.  

	The Tribunal also found, as a matter of background, that the racial composition of the Valuers Department was roughly 50/50 black/white.  After the departure of Mr Sampong and Mr Fashola there were no black officers at or above grade PO4.

The Tribunal's Decision 
	After setting out their findings of fact and referring to the relevant statutory provisions and authorities, the Tribunal stated that it was common ground on the victimisation claim that the resolution of that issue was dependent on the Tribunal's finding as to whether or not Mrs Collins issued the second notice of complaint on 28 January 1992 because Mr Sampong had started the first Tribunal complaint alleging racial discrimination.  It was also common ground that Mrs Collins became aware of the contents of Mr Sampong's first complaint to the Tribunal on 13 January, just over two weeks before she issued the second notice of complaint.

	The Tribunal unanimously criticised Hackney's internal procedures; in particular, the fact that it took one full year for Mr Sampong's assimilation appeal to be heard and decided.  The  Tribunal saw none of the relevant equal opportunities documents.  There was no evidence of Hackney having provided any training to managers on Equal Opportunities or the Statutory Race Relations Code of Practice which came into force on 1 April 1984.  There was poor management.  Mr Sampong was not given any proper guidance in the period prior to Mrs Collins' arrival in 1991.  Mrs Collins was not responsible for Hackney's failures.  The Tribunal felt that Mr Sampong's first complaint would have been stronger had it been brought against Hackney rather than Mrs Collins.  

	On the complaint of race discrimination the Tribunal were unable to reach a unanimous decision.  The majority, consisting of the two lay members, were prepared to accept some of the criticisms made about Mrs Collins e.g. her impatience with Hackney's procedure, but were of the view that Mrs Collins had good managerial reasons for treating Mr Sampong in the way she did.  She was right in her assessment that Mr Sampong was incompetent in the performance of his tasks.  He ignored Mrs Collins's clear instructions in relation to the Abney Cemetery and 44 Waterden Road projects.  Mr Sampong was extremely difficult to handle.  Mrs Collins had acted as any other reasonable manager would have done.  Her treatment of Mr Sampong was not based on race.  She treated him exactly as she would have treated any other person in similar circumstances regardless of their racial origins.  The decision stated (paragraph 9(1)):
		"The majority can find no evidence that the Respondent's treatment of the applicant was based on race."
	The Chairman disagreed on the grounds that he was prepared to draw the inference that Mrs Collins discriminated against Mr Sampong on racial grounds.  

	On the victimisation complaint, the Tribunal found in Mr Sampong's favour.  They decided that Mrs Collins had contemplated the issuing of a second notice of complaint against Mr Sampong before she became aware of the first Tribunal complaint against her.  However, she did not actually issue the notice of complaint until 28 January.  That was more than two weeks after she became aware on 13 January 1992 that Mr Sampong had commenced his first Tribunal case against her.  The Tribunal said (paragraph 10):
		"It is difficult to understand why she embarked on such a futile exercise which was abandoned shortly after its inception because of the applicant taking early retirement, a matter which she could have reasonably foreseen.  She ignored Mr Yeboah's sensible advice on 19 December to hold her hand.  We find that the respondent issued the notice of complaint on 28 January 1992 because she became very upset at the allegation of racial discrimination made by the applicant in his first complaint.  Although she consulted Mr Michael, the decision to issue and its timing was entirely the respondent's decision.  It is the Tribunal's unanimous finding that the respondent issued the notice of complaint on 28 January 1992 because the applicant had commenced his first Tribunal complaint.  By doing so, she subjected the applicant to a detriment.  He was subject to a disadvantage."

	For those reasons the Tribunal found that there was victimisation of Mr Sampong contrary to Section 2(1)(a) and 4(2)(c) of the 1976 Act.

	Mr Kibling, who appeared on behalf of Mr Sampong, defended the Tribunal's decision on victimisation on a number of grounds.

	(1)  An appeal from the Industrial Tribunal is confined to points of law.  It is not permissible to challenge the fact finding role of the Tribunal nor to subject the reasoning of the Tribunal to detailed analysis in order to find a point of law.

	(2)  Though the Tribunal were under a duty to tell the parties in broad terms why they had lost or won, as the case may be, they were under no obligation to state in express terms the law, the legal framework or the relevant legal considerations.  In particular, they were under no obligation in a victimisation case to identify expressly the comparator or the detriment suffered by the complainant.  Matters of less favourable treatment and causation arising from victimisation claims were questions of fact, not questions of law and could only be challenged on an appeal if found to be perverse.

	(3)  The Tribunal dealt with the questions of less favourable treatment and causation, both directly and by inference, in the decision; in particular, in paragraph 6(26) and paragraph 10 (as quoted above) where they stated that Mrs Collins said in evidence that she was generally upset at "being charged with discrimination" and that it was "humiliating and degrading".

	(4)  The crucial fact was in the timing of the action by Mrs Collins.  She issued the notice of complaint two weeks after she became aware of Mr Sampong's complaint to the Industrial Tribunal of unlawful racial discrimination.  She embarked on a futile exercise of taking disciplinary action against him.  She ignored the "sensible advice" of Mr Yeboah.  She was upset at being charged with racial discrimination.  The Tribunal found that she issued the notice of complaint against Mr Sampong because he had commenced his first Industrial Tribunal complaint against her.

	(5)  On the question of detriment, the Tribunal were entitled to find (and were correct in finding) that the detriment was in the issue of the notice of complaint on 28th January 1992.  Being subject to disciplinary action was rightly regarded by the Tribunal as detriment.

	(6)  Considered overall there was no misdirection of law by the Tribunal.  The decision was one which a reasonable Tribunal, on the facts found and on a proper appreciation of the law, could have reached.

The legal position	
	We see the force of some of Mr Kibling's points, but we have reached the conclusion that Miss Booth QC is correct in her submission that the Industrial Tribunal erred in law in failing to ask itself the relevant questions in relation to the claim of victimisation ie
	(a)  whether Mr Sampong was less favourably treated than someone who had not done a protected act within S.2(1); and
	(b)  whether that less favourable treatment was due to the complaint made by him to the Industrial Tribunal.
The Tribunal failed to ask (and therefore failed to answer) both of those relevant questions.  In our view, the appeal should, therefore, be allowed.

	Valuable guidance on the interpretation and application of the victimisation provision in S.2 of the 1976 act was given by the Court of Appeal in Aziz v. Trinity Street Taxis Ltd [1988] ICR 534.  The following points are specially relevant to this case.
		(a)  The legislative purpose of S.2(1) of the 1976 Act is to ensure that victims of racial discrimination (and others) will not be deterred from doing any of the "protected acts" in (a), (b), (c) or (d) of S.2(1) by fear that they may be victimised.
		(b)  A complainant must show not only that he has committed a protected act.  He must also show that 
			(i)  the discriminator has treated him "less favourably than in those circumstances he treats or would treat other persons"; and
			(ii)  the discriminator has done so "by reason that" the complainant has committed a protected act; see p.542E - 543A.
		(c)  The requirement of "less favourable treatment" necessitates a comparison of some kind or other (p.545A)
			"The treatment applied by the alleged discriminator to the complainant has to be compared with the treatment which he has applied or would apply to persons who have not done the relevant protected act".  (p.546C)
		(d)  Even if that can be shown, the "hurdle of causation" also has to be surmounted (p.546E).  In order to do that it must be shown that the very fact that the protected act was done by the complainant under or by reference to the 1976 Act influenced the alleged discriminator in his unfavourable treatment of the complainant (p.548A)
		(e)  In a case where there is more than one factor influencing the doing of an act, including a factor which constitutes unlawful discrimination, there should be an assessment or evaluation of the importance of the unlawful factor in the decision making process in order to determine whether it is to be treated as a cause, if not the sole cause, of the act: See Nagarajan v. Agnew & Ors [1994] IRLR 61.

Conclusion
	In our view, the Industrial Tribunal erred in law and the appeal should be allowed for the following reasons:-
	(1)  The Industrial Tribunal failed to focus on the key question whether Mrs Collins had treated Mr Sampong less favourably than she treated or would treat a person who had not made a complaint of race discrimination against her.  That point is not addressed in paragraph 10 of the decision or in any other paragraph.

	(2)  On the facts found by the Industrial Tribunal and on the basis of the Notes of Evidence, the only conclusion which a reasonable Tribunal, properly directing itself on the law, could reach was that Mr Sampong was treated no less favourably by Mrs Collins that she would, in all the circumstances, have treated a person who had not done a protected act.  Mrs Collins was dissatisfied with Mr Sampong's work.  He was difficult to handle.  She had good managerial reasons for treating him as she did, as he was incompetent.  She treated him as she would have treated a white person in similar circumstances.  She had already started disciplinary proceedings against him.  They were held in abeyance to await his appeal.  On 19th December 1991 Mrs Collins made it clear to Mr Yeboah that she wished to serve further disciplinary proceedings on Mr Sampong.  She was frustrated at the lack of progress made in negotiations for his early retirement.  The decision to serve the notice of complaint was taken before she received the Industrial Tribunal proceedings complaining of racial discrimination by her.  She was worried about the quality of his work between September 1991 and January 1992.  In her view, he was becoming increasingly incompetent.  There were delays in proceeding against him because of his absence from work.

	For all those reasons, the appeal is allowed and the complaint of victimisation is dismissed.